'Swiss DMCA' fears overblown, says copyright authority

Wording is ambiguous, argues petition author

A petition to repeal Switzerland's new copyright law, described as "brutal" by BoingBoing.net and hotly debated on Slashdot, was dismissed yesterday as groundless and misguided by the Swiss copyright collecting authority, SUISA. The petition's submitter, however, claims a rewrite is needed to clarify the law's true scope.

According to the petition, the new copyright law puts a DMCA-style gag on technical discussion and sharing of DRM cracking techniques and flaws. As a result, it wipes out Swiss consumers' traditional right to bypass DRM in order to copy what they own, because "it is illegal to distribute or mention or hint at the means to do so".

The crux of the problem, according to the petition's author, web developer Florian Bösch, is the ambiguous wording of Section 3 of Article 39a of the law. This says "it is forbidden to manufacture, import, offer to the public, sell or otherwise circulate, rent, allow use, advertise or possess for profit devices, products or components" which circumvent DRM.

That sentence can be interpreted in two ways, according to Bösch. In one, the "for profit" clause applies to all of the described actions, which are therefore not forbidden if they're conducted on a not-for-profit basis. If so, there's no problem: in Switzerland, bypassing DRM for legitimate purposes, such as library access, personal use and format shifting, is unquestionably a legal right, as stated clearly by Section 4 of the new copyright law.

In the other interpretation, the for-profit clause applies only to possession of circumvention devices. If so, any manufacturing, importing, distributing or advertising of circumvention devices, as well as technical discussion and knowledge sharing, whether for profit or not, would be prohibited. That would indeed be brutal: it would become illegal in Switzerland to even show someone how to exercise his or her right to circumvent DRM.

"How can you expect a consumer to make use of his legal rights to copy," says the petition, which seeks to collect 50,000 signatures from Swiss citizens, "when others can't provide him or help him with getting the means to do so legally?"

However, SUISA's Mauro Osenda questions this draconian interpretation. In his view, the "for profit" clause applies to all the activities referenced in the law and determines if they are legal. If money changes hands, they're not. In other words, the Swiss can still help their friends to make use of their legal right to bypass DRM to copy their own stuff for their own use; they just can't make a business out of it.

But what if, say, a Swiss blogger posted an article on DRM circumvention and made a profit from it through banner ads? Osenda said it's highly unlikely that he or she would be prosecuted, due to lack of precedent. It will take a court ruling to settle the matter, and this may take years, according to Osenda.

The whole exercise may be pointless, he added, since the content industry is gradually abandoning DRM, anyway. In addition, Switzerland has a long tradition of negotiating laws with all parties involved, and consumer associations helped draft the new copyright law, so presumably any real crackdown on consumer rights would have surfaced long before now.

Understandable concern about worldwide copyright creep and lack of familiarity with the Swiss legal system may have prompted hasty judgment of this "Swiss DMCA", but the petition has unquestionably raised awareness of copyright and consumer rights regarding digital media, which have received little mainstream attention so far in the Confederation. ®

Paolo Attivissimo is a journalist and broadcaster, based in Switzerland.